Dubner, Stephen J. "What's the Future of the Music Industry? A Freakonomics Quorum." Freakonomics Blog, New York Times. 20 September 2007. <http://freakonomics.blogs.nytimes.com/2007/09/20/whats-the-future-of-the-music-industry-a-freakonomics-quorum/>

This 2007 New York Times blog compiles the opinions of five different experts on the music industry. They are asked to reflect on the "future" of music in the context of the digital revolution. One expert is the author of the previously-referenced "Effects of File-Sharing on Record Sales," three are major music executives, and another is the founder of Engadget and a free, online-only music label. Essentially, they all offer disparate perspectives regarding the way in whcih music consumption is changing.

In a paper meant to argue a particular position about the success of new online music distribution methods, any novice or statistical opinion must be tempered by that of the experts. This New York Times column is a unique and valuable compilation of 5 different expert opinions. Largely, everyone seems to agree that the music industry is undergoing substantial change and that the labels must be open to reinvention. One suggestion undrestood by the labels in 2007, it seems, are advertising-supported models. Most interestingly, in their opinions these experts define exactly why the internet has changed the demand for music so thoroughly: it has affected scarcity. This is a crucial basis of understanding for any marketing or revenue model that follows.

Anderson, Chris. “The Long Tail.” Wired Magazine Issue 12.10. October 2004. < http://www.wired.com/wired/archive/12.10/tail.html>

Chris Anderson’s article “The Long Tail” (later expanded into a book) introduces the idea of the growing importance of the Long Tail in the way that media is marketed on the internet. It posits that the internet has allowed for a new profitability of the non-“hit” 80% of entertainment product (books, music, DVDs). Ultimately, he argues that the incorporation of the Long Tail into business and marketing models has been advantageous for the entertainment industry, the consumer, and for “culture” as a whole.

The concept of the rising profitability of the Long Tail is a major one in any argument regarding new music marketing on the internet. The Long Tail model is a fundamental example of the way that online consumption of media has changed (and, it is argued, improved) the music industry as a whole. Since 2004, when Anderson first coined his Long Tail idea, we have seen the effects of Amazon, Netflix, and iTunes’s feedback mechanisms for identifying taste and suggesting a focus on less-popular items. Clearly, the exploitation of the Long Tail by these distributors proves the profitability of internet-specific marketing models. Further, I believe that the growth of the Long Tail model has been a taste-making mechanism in the generations that have embraced these internet vendors—not only has the use of the Long Tail shaped marketing initiatives, but it has changed the way the consumer defines their own taste.

Research in Information Technology (RIT) is dedicated to supporting the thoughtful application of information technology to a wide range of scholarly purposes. The Foundation is interested in promoting the study of uses of digital technologies that can be applied to research and online and distance learning and teaching. The Foundation also supports investigations of new technical approaches to the archiving of textual and multimedia materials that require improved search and storage techniques and improvements in user-interfaces. The impact of information technology (and especially digitization) on scholarship, scholarly communication, and libraries is indisputable.

The Foundation seeks proposals related to technology that benefits one or more of its constituencies and/or multiple institutions, can realistically be developed by the grantee within the proposed timeframe and budget, provides a significant cost savings, is shareable, reliable, and objectively assessible, and has available IP.

Deadlines: 1/28/09 for projects starting 9/09; 8/26/09 for projects starting 4/10

Grants for America’s Media Makers support media projects that explore significant events, figures, or developments in the humanities and offer creative and new approaches to humanities content.

• offer cross-platform distribution of humanities content that combine radio or television programs with programs using emerging technologies, museum exhibitions, reading and discussion programs, and other formats that expand and enhance the program’s humanities content, deepen the audiences’ experience of the content, engage audiences in new ways, and expand the distribution of programs;
• advance the role of cultural repositories in online teaching, learning, and research for public audiences, teachers, students, and scholars;
• include but are not limited to DVDs, Web sites, games, virtual environments, streaming, video on demand, and podcasts, as well as user-generated content;
• engage in simultaneous production of a broadcast program and interactive companion content in order to extend the educational experience of the program’s audience, use resources efficiently, and keep the humanities ideas at the center of the project as the broadcast program and the interactivity are designed;
• engage public audiences interactively in exploring humanities ideas and questions by using new ways to contextualize, interpret, and distribute content;
• result in large-scale, collaborative programs featuring multiple formats; and
• build new programs around previously funded NEH projects using complementary formats that will add new dimensions to the original project and take advantage of new formats and technologies to reach audiences that were not served by the original project.

This book presents a guide to the resource acquisition, legal, and financial necessities of producing an independent film.  Every aspect of the planning and execution of the business side of filmmaking is discussed, including hypothetical situations based on the personal experience of the entertainment lawyers who co-authorized the book.  The book introduces the roles of producer and lawyer, then outlines the film development process through deal making, financing, hiring, licensing and distribution.

As is pertains to my project, this book provides valuable insight into the warranted concern that filmmakers have had with the 21st century dispute over Internet distribution rights.  In the case of Viacom v. Youtube, the exclusive rights per the 1976 Copyright Act for copyright owners to reproduce their works became the basis for allegations against YouTube for a count of direct copyright infringement.  The authors of this book advise filmmakers to negotiate with distributors on the basis that they "cannon distribute on the Net until there is adequate 'border protection' to prevent access outside licensed territories" (132).

Erickson, Gunnar, Harris Tulchin, Mark Halloran, and J. Gunnar Erickson. The Independent Film Producer's Survival Guide: A Business and Legal Sourcebook . New York: Schirmer Trade Books, 2005

Intellectual property is an essential element of innovation. In order for innovative businesses to introduce intellectual property into the global market, strategic management and protective policies are necessary. The book looks at the dynamics and challenges of managing intellectual property.  The book details effective strategies for balancing intellectual property innovation and marketing in the public domain, with effective acquisition and protection of ownership rights.  The book is comprehensive, advancing from the history of these issues from a global perspective to future challenges that face pioneering global business models.

As it pertains to my project, the book describes Google as a visionary company that, despite the legal accusations against the business giant, may have success in reshaping the future of copyright law (135).

Gollin, Michael A. Driving Innovation: Intellectual Property Strategies for a Dynamic World . New York: Cambridge University Press, 2008

Intellectual property is taking on new forms in the digital media market. Consumers are exploring their creative license through the use of multimedia service providers in unprecidented ways. This surge of consumer digital media use is also bringing to a head new conflicts between intellectual property rights Creative Commons, and Digital Rights Management. This book explores this phenomenon and the various ways in which major digital media service providers are being effected by this rapidly changing market environment. Overviews of the business performance, legal goings on, and multimedia services of such industry icons as Google, Inc., Metro-Goldwyn-Mayer, Sony BMG, Napster and more are discussed.

In reference to my project, the book looks at precident intellectual property cases and gives insights into how the concepts within the 1976 Copyright Act are applicable to the cases. The author also notes that Google has aside $200 million in escrow to deal with inevitable litigation, lists the various number of litigations involving YouTube, and notes that these cases will set important precedents for future review of copyright law as it pertains to Internet videos (253).

Rimmer, Matthew. Digital Copyright and the Consumer Revolution: Hands Off My Ipod. Massachusetts: Edward Elgar Publishing, Inc., 2007

            This article written by Senior Counsel, Music, for RealNetworks, Inc., describes one new service which could provide a free and legal alternative to illegal downloading. The service it is about is called SpiralFrog which it says falls in the middle of the spectrum between free and illegal and for sale and legal. The free downloads are legal in this cause because the use of the digital music will be "limited" in that the downloads have a set time and then they become no longer playable, and they are not compatible with iPods. The service will be "free" because users do not have to pay money, they only have to watch an advertisement periodically while they have a download. With services like SpiralFrog, the idea is that users can get music for "free" as they have grown accustomed to, and the labels can still get paid.

            This article is relevant to my research on why copyright owners fight technology such as peer-to-peer services that allows free downloads, but choose to waive their copyright in certain situations, such as MP3 blogs, because it is a description of a service that provides free music to users, while generating revenue to pay the copyright owners. The article is an optimistic view at the system as it comes from someone in the industry of ad based music providers. The service does pay the copyright holders, but in the restrictions it places on how users are able "own" music will probably make it unpopular to the copyright pessimists. The article in fact mentions one of the fears of DMCA and anti-device opponents because the downloaded songs will not be usable in iPods.

            This is an article mainly about the licensing process for internet music stations. The article explains that in order to get an internet public performance license one must contact, ASCAP, BMI, and/or SESAC. In exchange, you pay a royalty rate to these groups based on your service's gross revenue, who then pass them to the record publishers and rights holders. However, the article goes on, the licensing can be a difficult, confusing, and contradictory process. For example, ASCAP's license does not say one may make multiple copies of the music and the Copyright Act only permits one copy of the transmission, but transmission of anything over the internet technically occurs by copies being made. The Copyright Act says non-subscription transmissions are exempt from licensing, but one argument is that any website is still a subscription service because users accessing it must pay for the internet through service providers. There is also statutory licensing if transmissions fit five criteria.

            I came across this article in my research about how some copyright holders are willing to waive some copyright in order to benefit from MP3 blogs, while still fighting for stricter copyright law that will curb the use of other similar technology such as peer-to-peer services. The licensing options in this provide a legal way for people to get licenses to use music over the internet so that the copyright holders still get paid. However it seems that for much of the use of music on the internet, particularly for bloggers, there is little or no revenue generated. Also while these licenses help the copyright owners to make some money for the work's use, by the time the money gets through the collecting societies, then to the copyright holder, there is probably little monetary value for anyone involved and it may not be much of a step in promoting the artist's creativity.

This article looks at newly emerging technology that is currently being effected by the MGM v. Grokster decision. Ganley provides a standard background of the Grokster case, stating the facts of the proceedings, before delving into the ramifications of the unanimous decision that “distributors of decentralized P2P software can be held liable for copyright infringements committed by their users.” Some people felt that the “key to resolving the case was an affirmation or reinterpretation of the Sony rule,” but Ganley writes that the Supreme Court disagreed with this notion and instead focused on the issue of intent, which was mention in the Sony case, but not the main focus of that decision. Specifically, the court stated that “nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.”

Overall, the court used three main pieces of evidence to prove that there was intent on the part of Grokster and Streamcast, thus enacting the inducement standard. The three points were 1) Advertising – meaning the way Grokster presented its service to clients – 2) Absence of Filtering – meaning the lack of precaution against the potential for infringing activity – and 3) Revenue model – meaning the way revenue was collected. In this case, the amount of money generated directly correlated to the number of people using the service and the traffic on the site was almost entirely due to infringing behavior, which meant that regardless of the system’s non-infringing potential uses only the infringing uses were directly generating revenue. The court also pointed out in their holding that points 2 and 3 “simply added weight to inference of an unlawful intent based on the advertising-related behavior. On their own, these points would not satisfy the evidential burden.”

About these three points, Ganley comments that the one dealing with filtering seems to be the most problematic. The reason for his saying this is because future innovation could be chilled. Even though the lack of a filtering system alone was not enough to prove inducement, the decisions of future cases may hinge on whether of not a filtering mechanism was present in the device or system. However, these sorts of mechanisms may be too expensive for independent inventors to incorporate in early stages of development and therefore hinder future inventions. Ganley also touches briefly on the inducement standards possible effect on BitTorrent and Me2Me technology such as Tivo, the iPod or the Slingbox. So far, BitTorrent seems to be in the clear because all expression of its intent encourages non-infringing uses, unlike Grokster’s internal communication that specifically hoped to target old Napster users. Additionally, Me2Me technology has not get been formally prosecuted because thus far they are not guilty of inducement or the Sony standards of contributory infringement and vicarious liability. Of course, they may still be brought to court in the future.

In conclusion, Ganley writes that the Grokster decision is unlikely to make much of a difference to files shared online and has only caused minimal damage to future technological advances. But, as a result of the case's outcome, harsher infringement protection is being created. There is new technology coming to the market like programs called Avalanche or SnoCap that are using cutting-edge technology to digitally fingerprint copyrighted material and hopefully protect them from being illegally distributed in the future.

As Alfred Yen, professor of law at the Boston College Law School, states in his introduction, this article "studies the construction of third party copyright liability in light of the recent Supreme Court case Metro-Goldwyn-Mayer Inc. v Grokster, Ltd.” The article is broken up into five sections: the first describes the doctrines that governed third party liability before Grokster, the second uses “fault and strict liability to expose the theoretical and practical tradeoffs implicit I these differing constructions, the third analyzes the case itself, the fourth describes the implications of the decision and “sets forth the general contours of an improved, post-Grokster­ construction of third party copyright liability, and the fifth gives some thought to the future of this subject matter.

The Grokster case is the latest in a series of cases where an internet service provider has been prosecuted for the actions of its users. Yet, even with this new decision in the books, little progress has been made to determine who is really the most responsible for infringement or how to hold them adequately responsible. Yen writes that “third part copyright liability benefits society by encouraging individuals to stop others from infringing, but those benefits come at a price… third party copyright liability suppresses non-infringing as well as infringing behavior.” Overall, this paradox illustrates the biggest deficit of internet copyright law: the inability to find the balance between, in Yen’s words, “desirable and undesirable consequences” of new technology. At this point in time, there seems to be no obvious strategy for regulating the internet without stifling future innovation and creation.

This article points out that although Grokster “gave the Supreme Court the opportunity to straighten out the law of third party copyright liability” little to no progress was actually made in interpreting pre-Grokster doctrines of third party copyright liability. Instead of “choosing between” existing “differing interpretations” of the law, Yen writes that the court “adopted a dormant theory of third party copyright liability, inducement.” Overall, Yen’s article shows that “inducement give courts a new tool for holding culpable defendants liable which reducing the risk of undesirable side effects.” Yen describes the Grokster decision as being “not a landmark, so much as a milestone, ratifying a continuing détente between those who build on the Internet and those in a position to regulate the builders.” This decision has also turned the focus of internet gate keeping to controlling software and PC uses ability to run that software rather than the ability to control the entire network.

Whether or not one agrees with the merit of the new inducement doctrine, this article is a comprehensive look at an area of copyright law that is important and continuing to quickly evolve. The story of these laws will continue to change drastically in the years to come, but this is a useful, informative and through-provoking look at the situation thus far.

Section 512 of the Digital Millennium Copyright Act (DMCA) is called “Limitations on liability relating to material online.” It specifically outlines what an online service provider (OSP) can be held responsible for and the times when they are exempt for responsibility. 512 provides copyright holders the right to ask OSPs to remove material that appears on their sites or in their programs if it is an infringement of copyright. However, a service provider is not liable for “monetary relief” or for “injunction or other equitable relief” if “the service provider does not have actual knowledge that the material or an activity using the material on the system or network is infringing” and upon obtaining such knowledge “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”

In other words, a service provider is, in many cases, not liable for the content posted by its users, but must act swiftly to remove the infringing material from its site or service once it is notified of the infringement. Basically, if the OSPs comply promptly and effectively with copyright holders’ take down requests then they are protected by a “safe harbor” provision. According to reference.com the definition of a “safe harbor” is “a provision of a statute or a regulation that reduces or eliminates a party's liability under the law, on the condition that the party performed its actions in good faith.”

Therefore, this section of the DMCA is particularly important in determining secondary liability. A safe harbor can only be created if the site or service follows proper protocol and has been cleared of primary liability in the first place. Napster was held liable for the content being uploaded by its users because it provided a centralized server through which all information had to be passed, and thus was not granted a safe harbor.

YouTube is currently being protected by 512 because of its compliance with any and all take down notices it receives. YouTube's safe-harbor status is also helped by the fact that it has partnered itself with big, copyright-holding companies. Of course, if YouTube wasn't also complying with the takedown notices being issued by copyright holders in the first place, these partnerships wouldn't matter - or at least we’d like to think it wouldn't... The business possibilities for YouTube may almost be enough to outweigh the law, if they get the right business partners on their side.

512 is an important provision because it allows sites and services with substantial non-infringing uses to function with the possible existence of infringing material in exchange for removing that infringing material as quickly as possible. A no-tolerance infringement policy seems to be outside the scope of available online practices, therefore 512 allows services to exist with the understanding that there is inherent infringement on the internet.

In this article, William Landes looks at the “enduring legal question” that asks to what extent tools, services and venues that individuals use to infringe copyright should be held liable for the resulting infringement. In other words, Landes asks “how far should copyright liability extend beyond any direct lawbreakers?” Copyright law uses a variety of common law doctrines and statutory provisions in order to address issues of secondary and tertiary liability. In this article, Landes looks at these laws of copyright and evaluates them from an economic perspective. Landes states that unlike the Patent Act, the Copyright Act of 1976 “does not explicitly recognize the possibility of indirect liability.” He writes that courts have held third parties liable for copyright infringement by turning to the long-standing common law doctrines of contributory infringement and vicarious liability. Landes goes into a great deal of detail in explaining what these two terms actually mean and explaining their role in the Sony decision.

Landes claims that in the Sony decision the Courts failed to consider the balance between the benefits associated with legitimate use and the harms associated with illegitimate use. Landes writes that the ruling “implies that VCR manufacturers can facilitate any copyright violation they wish so long as they can prove that VCRs also facilitate some non-trivial amount of legitimate behavior.” However, Landes concedes that “mere dissection of the legal analysis misses the heart of the Sony decision” and goes on to write that “the driving concern in Sony was a fear that indirect liability would have given copyright holders control over what was then a new and still-developing technology.” Overall, the Court wrote that Copyright law must “strike a balance between a copyright holder’s legitimate demand for effective . . . protection . . . and the rights of others freely to engage in substantially unrelated areas of commerce.” This same idea can be analogized to a lawsuit that attempts to hold Internet service providers liable for online copyright infringement. Landes writes that “it is easy to see why courts would be reluctant to enforce such liability.”

From an economic standpoint, Landes explains that although Copyright law is important “at some point copyright incentives must take a backseat to other societal interests, including an interest in promoting the development of new technologies and an interest in experimenting with new business opportunities and market structures.” Overall Landes concludes that “the main argument in favor of liability is that, although [secondary] parties are only indirectly responsible, they are typically in a good position to either prevent copyright infringement or pay for the harm it causes.” However, “indirect liability has a significant drawback […] in that legal liability — even if carefully tailored — inevitably interferes with the legitimate use of implicated tools, services, and venues. Sometimes raising the prices of services, or even just setting the prices of in the first place, dissuades legitimate users from engaging in legal activity because they don’t want to pay the price. Landes points out that “one can only wonder, for example, how different the Internet would look today had it been clear from that outset that, say, Internet service providers were going to be held accountable for online copyright violations.” Landes concludes by saying that “ the only way to determine the proper scope for indirect liability is to weigh its costs and benefits against the costs and benefits associated with other plausible mechanisms for rewarding authors.”